Opinion
314737/10
08-12-2011
S.B., Plaintiff, v. G.B., Defendant.
Kevin McDonough, Esq. of Stein Riso Mantel, LLP, New York, New York for the plaintiff. Jeffry Schecter, Esq. Of Jeffrey S. Schecter & Associates, Garden City, New York for the defendant.
Kevin McDonough, Esq. of Stein Riso Mantel, LLP, New York, New York for the plaintiff.
Jeffry Schecter, Esq. Of Jeffrey S. Schecter & Associates, Garden City, New York for the defendant.
Ellen Gesmer, J.
Defendant (Wife) moves for an order pendente lite: (1) awarding her $18,700 per month in maintenance, non-taxable to her; (2) awarding her $6,100 per month as child support; (3) directing the plaintiff (Husband) to pay all carrying charges and utilities for the former marital residence (the Apartment), inclusive of any arrears due on such expenses; (4) directing the Husband to pay all housekeeping expenses for the Apartment; (5) directing the Husband to pay the salaries of the children's nannies; (6) directing the Husband to pay all outstanding payments due on all existing credit cards in the Wife's name; (7) awarding the Wife exclusive occupancy of the former marital residence; (8) directing the Husband to renew the lease for the Apartment; (9) directing the Husband to pay 100% of the children's summer camp, tuition and other educational expenses; (10) directing the Husband to pay 100% of the Wife's and the children's unreimbursed medical, dental, optical, therapy, and cosmetic procedure expenses; (11) directing the Husband to maintain life insurance benefitting the Wife and children; (12) appointing a neutral forensic accountant to value the Husband's degrees, licenses and business interests at the Husband's sole expense; and (13) awarding the Wife $50,000 as interim counsel fees. The Husband opposes the Wife's motion, except to the extent that he consents to pay: (1) the rent and utilities for the Apartment; (2) the children's tuition and other educational expenses at their current schools; (3) existing health insurance premiums and 83% of the children's unreimbursed medical expenses; and (4) $12,500 per month as interim spousal maintenance, taxable to the Wife and tax deductible by him. He cross-moves for an order: (1) awarding him parenting time with the children; and (2) directing that neither party may enroll the children in extracurricular activities that interfere with the other party's parenting time without the express agreement of the other parent. The Wife opposes the Husband's cross-motion.
By order dated June 1, 2011, this court appointed a neutral forensic accountant to evaluate the Husband's degree earned during the marriage, and directed that the neutral's fees be paid 75% by the Husband and 25% by the Wife. On May 26, 2011, the parties entered into a so-ordered stipulation pursuant to which: (1) each party may have two weeks with the children during their summer break; (2) the Husband has parenting time with the children alternate weekends, on Saturdays from 9:00 a.m. to 6:00 p.m. and Sundays from 9:00 a.m. to 6:00 p.m., and every Wednesday evening from 5:00 p.m. to 8:00 p.m., with the Wednesday visits to become overnight visits commencing September 1, 2011; and (3) the Wife has exclusive use and occupancy of the Apartment.
Therefore, the only remaining issues are: (1) temporary maintenance; (2) temporary child support; (3) counsel fees; (4) the Wife's request that the Husband be required to pay for the children's two nannies and for housekeeping services; (5) the Wife's request that the Husband be required to renew the lease for the Apartment; (6) the Wife's request that the Husband be required to maintain life insurance; and (7) the Husband's request for an order that neither party enroll the children in activities that take place during the other party's parenting time without the consent of that parent.
FACTS
The parties were married on June 10, 2002 and have two children, a daughter, born on November 1, 2004 (now six), and a son, born on October 6, 2008 (now two). The parties enjoyed a comfortable lifestyle during the marriage, even though the Wife has not worked outside the home. They have employed at least one full-time nanny since the daughter was born, and have employed two full-time nannies since the son was born, one of whom was, and continues to be, a live-in nanny. In addition, they employed a housekeeper throughout the marriage. It is also undisputed that the Wife has made many luxury purchases during the marriage. However, the Husband claims that the Wife spent beyond their means in spite of his repeated requests that she not do so, particularly in the first six years of their marriage, when he earned half or less than half of his current income, which is now over $800,000 annually, as discussed below.
The parties have been separated since July 2009, when the Husband moved out of the Apartment and into the luxury Bowery Hotel. Following the parties' separation, the Husband has made the following voluntary monthly payments to or on behalf of the Wife: $12,000 as unallocated support, $1,000 in credit card payments, $6,872 for the Apartment rent, $900 for Apartment utilities, $4,192 for the children's tuition, and $1,000 for unreimbursed medical expenses. On December 9, 2010, the Husband commenced the instant action for divorce.
The Wife is 37. She has a BA degree, but has not worked outside the home during the parties' marriage. Her Net Worth Statement lists no assets in her sole name, although the Husband attaches to his cross-motion a copy of a 1099 form for a checking account in the Wife's sole name, which the Husband claims her family makes deposits into for the Wife's benefit. The Wife denies that her father has provided her with substantial sums during the marriage, but does not deny that the account in her name exists and that members of her family make deposits into it for her use. The Wife's Net Worth Statement lists a joint bank account with the Husband, but lists the balance as "varies." It lists her total monthly expenses as $49,515.17, which includes approximately $16,125 for expenses the Husband has agreed to pay or has been paying voluntarily, including, rent, utilities, insurance, and the children's tuition, other educational, camp, and extracurricular activity expenses. The Wife's monthly expenses also include $6,830 for food, $7,600 for clothing for herself and the children, $775 for apartment maintenance and furnishings, $4,165 for unreimbursed medical and therapy expenses, $6,934 for two nannies, $430 for building staff tips, $4,000 for vacations, $1,046 for salon services, $500 for cosmetics and drug store items, and $1,416.67 for gifts. The Wife's Net Worth Statement lists credit card debt in her sole name totaling $20,323. It lists an alleged loan from her sister and brother-in-law with a balance of $15,000. The Wife paid her attorneys a retainer of $15,000. As of May 13, 2011, she owed her attorneys $24,855.71.
The Husband is 35 and has an MBA from NYU. He is employed by F.B. Management Company and also has a real estate development business, B.D., LLC. His gross income as reported on the parties' 2010 joint federal income tax return was $862,451. The Husband concedes that his family has also assisted the parties in paying certain of the parties' expenses during the marriage, although it is not clear to what extent that has occurred or is occurring now. The Husband's Net Worth Statement lists a checking account in his sole name containing $16,590, and a joint savings account with the Wife containing $2,440. It lists retirement accounts in his sole name with a total value of $41,209. It lists his interest in the S.C. Children's Trust of 1983 as 0, noting that his share was fully distributed to him between 2007 and 2009. It lists his interest in a second family trust established by his grandparents in 2002 as having a value of $68,964 as of July 31, 2009, and notes that distributions are "at the discretion of the trustee." He states that no distributions have been made to any beneficiary to date. The Husband's Net Worth Statement lists retirement accounts in his sole name with a value of $24,619. It lists his monthly expenses as $20,048, which includes $2,000 for food, $1,200 for clothing for himself, and $240 for a housekeeper. The Husband's Net Worth Statement lists credit card debt in his sole name totaling $5,596, and no other debt. He paid his attorneys a $20,000 retainer.
ANALYSIS
Maintenance
When awarding temporary maintenance in matters commenced on or after October 12, 2010, in the absence of an agreement between the parties regarding maintenance, the court must consider the formulas and guidelines adopted by the New York State legislature in Domestic Relations Law Section 236B(5-a). The law requires the court to first determine each party's income as that term is defined by statute (DRL §236B[5-A][1][b][4]). The court must then determine the presumptive award of interim maintenance (DRL §236B[5-a][1][b][8]). To determine the presumptive award of maintenance, the court must perform calculations using each party's income, applying two different statutory formulas. In addition, where the payor spouse's income exceeds $500,000, as it does here, the court "shall determine any additional guideline amount of temporary maintenance" through consideration of 19 statutory factors (DRL §236B[5-a][c][2]); H.K. v J.K., 313852/10, NYLJ [Sup Ct NY Co 2011]).
Here, the Husband's gross annual income as reported on his 2010 tax return is $862,138 per year. His adjusted gross income (AGI) is $807,859.24. Thus, the Husband's AGI is capped at $500,000 for the purposes of the statutory calculations. The Wife earns no income. Therefore, the Husband is deemed the "payor" spouse, and the Wife is deemed the "payee" spouse for the purposes of calculating temporary maintenance. To determine the amount of temporary maintenance to which the payee spouse is entitled, based on the first $500,000 of the payor spouse's income, the court has conducted the following statutory calculations:
Calculation I
Payor's AGI$500,000
Payee's AGI$0
30% of Payor's AGI$150,000
20% of Payee's AGI$0
Difference$150,000/12 = $12,500 per month
Calculation II
Parties' Combined AGIs$500,000
40% of Combined AGIs$200,000
Less payee's income-$0
Total$200,000/12 =$16,666.66
per monthThe Wife is entitled to the lower of the two calculations above, or $12,500 per month, based on the first $500,000 of the Husband's income. The court has considered the nineteen statutory factors set forth in DRL § 236B(5-a)(c)(2)(a), to determine whether any additional guideline amount of temporary maintenance is warranted based upon the Husband's AGI above $500,000, which is $307,859. The court notes that the parties have been separated since July 2009, and the Husband has provided some support at a level that is less than what the Wife now seeks. The court also notes that the Husband has consented to continue to pay the Apartment carrying costs and utilities and the children's tuition and other educational expenses. Furthermore, the Wife does not deny that she receives money from her family, although she has not been fully forthcoming about this. The court finds that an additional award of maintenance is not appropriate under these circumstances, particularly given that the Wife's and the children's needs will be met by the statutory maintenance award in combination with the child support and other awards, discussed below. The interim maintenance award shall continue until there is a final determination as to spousal maintenance in this action (DRL §236B[5-a][d]). The Husband shall make the first payment on September 1, 2011, and subsequent payments on or before the first day of each month thereafter. Interim maintenance shall be taxable to the Wife and tax deductible by the Husband. Child Support
In awarding temporary child support, the court has considered the guidelines contained in the Child Support Standards Act (CSSA), Domestic Relations Law (DRL) §240 [1-b]), as well as the factors which permit a deviation from the standard calculation, as delineated in DRL §240(1-b)(f), such as the financial resources of the custodial and non-custodial parent and those of the children, the physical and emotional health of the children, and the children's educational or vocational needs and aptitudes, as well as the non-monetary contributions that the parents will make toward the care and well-being of the children (Williamson v Williamson, 196 AD2d 743 [1st Dept. 1993]). However, the purpose of pendente lite child support is to meet the reasonable needs of the children and maintain a sense of continuity in the children's lives during the pendency of the action, and the court need not strictly follow the CSSA guidelines in determining temporary child support (Rubin v Della Salla, 78 AD3d 504 [1st Dept 2010]; Ayoub v Ayoub, 63 AD3d 493 [1st Dept 2009]; Formato v Formato, 173 AD2d 274 [1st Dept 1991]; Otto v Otto, 13 AD3d 503 [2d Dept 2004]; Cooper v Cooper, 173 AD3d 746 [2d Dept 2004]).
Guided by the above, the Husband is directed to pay the Wife $4,500 per month as temporary base child support, with the first payment to be made on September 1, 2011, and subsequent payments to be made on or before the first day of each month thereafter.
In addition, the Husband is directed to continue to pay the Apartment carrying costs (including rent, storage fee, and renters' insurance), and utilities (including gas, electricity, heat, telephone land line service, internet, cable service, bottled water delivery, and family cellular phone plan) (DRL §236B[8][b]), including all arrears presently due and owing. The Husband is also directed to maintain and continue in full force and effect all presently existing policies of life, medical, dental, and optical insurance on behalf of the Wife and the parties' children (DRL §236B[8][a]), and to pay 100% of the children's unreimbursed, non-elective pharmaceutical, medical, and dental expenses, including all arrears presently due and owing.
The Husband is also directed to continue to pay 100% of the children's tuition and other educational, summer camp, and extracurricular activity expenses, including any arrears presently due and owing (Ayoub v Ayoub, 63 AD3d 493 [1st Dept 2009]; Rogers v Rogers, 52 AD3d 354 [1st Dept 2008]). However, neither party shall enroll the children in activities that take place during the time the children are scheduled to be with the other parent without the consent of that parent.
The Wife's request that the Husband be directed to pay for housekeeping services for the Apartment and the nannies' salaries is granted only to the extent that the Husband is directed to continue to pay the salary of one of the nannies, which the Wife lists in her Net Worth Statement as $3,467 per month. While it is undisputed that the parties have always employed two nannies and had a housekeeper during the marriage, the court finds that this award is sufficient for three reasons. First, the children will both be in school in the fall and the Wife is not presently working or seeking work. Therefore, additional sums for childcare are not warranted at this time. Second, it does not appear that the Wife currently employs a housekeeper, as she did not list any expense for housekeeping services on her Net Worth Statement. Finally, given the awards of maintenance and child support above, the Wife will have sufficient resources to pay for additional childcare and/or housekeeping services if she chooses to do so.
The Wife's request that the Husband pay the balances due on credit cards in her name is granted only to the extent that he is directed to pay the balance existing on the credit card in the Wife's name as of the date on which the Wife executed her Net Worth Statement, $20,323, by October 1, 2011. This is without prejudice to either party's claim at the end of this matter that such payment constitutes support and/or payment of a marital debt.
The awards of maintenance and child support above are retroactive to the original date of this application, March 28, 2011 (DRL §236B[6] and [7]). Retroactive sums due by reason of this award shall be paid at the rate of $1,000 per month, in addition to the sums awarded, until all arrears have been satisfied, with the first retroactive payment to be made on September 1, 2011, and subsequent payments to be made on or before the first day of each month thereafter. The Husband may take a credit for the sums voluntarily paid for actual maintenance and support of the Wife and children incurred after the making of this motion and prior to the date of this decision for which he has canceled checks or other similar proof of payment (Peltz v Peltz, 56 AD2d 519 [1st Dept 1977]; Pascale v Pascale, 226 AD2d 439 [2nd Dept 1996]). Renewal of the Apartment Lease
A party is entitled to injunctive relief upon a showing that immediate, irreparable harm will result in the absence of the relief sought (CPLR §6313). Although the Wife was uncertain as to when the Apartment lease may expire, the risk of her and the children's eviction in that eventuality certainly meets the standard. Accordingly, in the event that the Apartment lease expires during the pendency of this action, the Husband is directed to renew the lease. Counsel Fees
Domestic Relations Law §237 authorizes the court to direct either spouse to pay counsel fees in order to enable the other spouse to carry on or defend the action as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties (Johnson v Chapin, 12 NY3d 461 [2009]; Dodson v Dodson, 46 AD3d 305 [1st Dept 2007]; DeCabrera v Cabrera-Rosete,70 NY2d 879 [1987]). Domestic Relations Law §237(a), as amended in 2010, creates "a rebuttable presumption that counsel fees shall be awarded to the less monied spouse." Inasmuch as it appears that the Wife lacks sufficient funds of her own to compensate counsel without depleting her limited assets, the Wife is awarded interim counsel fees in the sum of $50,000 to be paid by the Husband directly to the Wife's attorney in two installments of $25,000 each, with the first payment due on or before September 1, 2011, and the second payment due on or before October 1, 2011 (Charpie v Charpie, 271 AD2d 169 [1st Dept 2000]). This award is made without prejudice to further applications for additional sums, as necessary at the time of trial or sooner (Jorgensen v Jorgensen, 86 AD2d 861 [2nd Dept 1982]), and is subject to reallocation at the end of this matter. If the counsel fees are not paid by the dates set forth above, the Clerk is directed to enter a money judgment in favor of counsel upon counsel's written affirmation. No further notice to the Husband shall be required.
The parties are reminded of the preliminary conference order and the dates set therein. Should any discovery problems arise, counsel are encouraged to call chambers (646-386-3730) in an effort to avoid costly motion practice.
In accordance with this decision, it is hereby
ORDERED that, commencing September 1, 2011 and on or before the first day of each month thereafter, the Husband shall pay to the Wife the sum of $12,500 as temporary maintenance, until there is a final determination as to maintenance in this action; and it is further
ORDERED that, commencing September 1, 2011 and on or before the first day of each month thereafter, the Husband shall pay to the Wife the sum of $4,500 per month as interim child support; and it is further
ORDERED that the Husband shall pay the Apartment carrying costs (including rent, storage fees, and renters' insurance), and utilities (including gas, electricity, heat, telephone land line service, internet and cable service, bottled water delivery service, and family cellular phone service), including any arrears currently due and owing; and it is further
ORDERED that the Husband shall maintain and continue in full force and effect all presently existing policies of life, medical, dental, and optical insurance on behalf of the Wife and the parties' children, and shall pay 100% of the children's unreimbursed, non-elective pharmaceutical, medical, and dental expenses, including any arrears currently due and owing; and it is further
ORDERED that the Husband shall pay 100% of the children's tuition and other educational, summer camp, and extracurricular activity expenses, including any arrears currently due and owing; and it is further
ORDERED that the Husband shall pay the salary of one of the nannies, up to $3,467 per month; and it is further
ORDERED that the Husband shall pay the balance existing on the credit card in the Wife's name as of the date on which the Wife executed her Net Worth Statement, $20,323, by October 1, 2011; and it is further
ORDERED that the awards of maintenance and child support above are retroactive to March 28, 2011, and that retroactive sums due by reason of this award shall be paid at the rate of $1,000 per month, in addition to the sums awarded, until all arrears have been satisfied, with the first retroactive payment to be made on September 1, 2011, and subsequent payments to be made on or before the first day of each month thereafter; and it is further
ORDERED that the Husband may take a credit for the sums voluntarily paid for actual maintenance and support of the Wife and children incurred after the making of this motion and prior to the date of this decision for which he has canceled checks or other similar proof of payment and it is further
ORDERED that the Husband shall pay directly to the Wife's attorneys interim counsel fees in the total amount of $50,000 in two installments of $25,000 each, with the first payment due on or before September 1, 2011 and the second payment due on or before October 1, 2011, without prejudice to further applications for additional sums, as necessary at the time of trial or sooner, and subject to reallocation at the end of this matter; and it is further
ORDERED that if the Husband fails to pay the Wife's attorneys as directed above, the Clerk shall enter a money judgment against the Husband and in favor of the Wife's counsel upon filing of an affirmation by counsel, with no further notice to the Husband required; and it is further
ORDERED that neither party shall enroll the children in activities that take place during the time the children are scheduled to be with the other parent without the consent of that parent; and it is further
ORDERED that, in the event that the Apartment lease expires during the pendency of this action, the Husband is directed to renew the lease before the expiration date; and it is further
ORDERED that all relief requested but not granted above is denied.
This constitutes the decision and order of the court.
ENTER:
Hon. Ellen Gesmer, JSC